This is a version of an article recently published by the American Bar Association Section of Labor and Employment Law Newsletter

Employment lawyers may face daily issues regarding religious, transgender, and caregiver accommodations. There would seem to be overlap among these topics, but there is not much. Religious accommodations are provided for explicitly by statute. The disputes are disputes of coverage—“religion,” types of practices to be accommodated, and notice. Transgender cases are not true accommodation cases, but instead are generally disputes about discrimination. Transgender cases often rely on the theory of sex stereotyping. Caregiver cases cannot be strict accommodation cases, because aside from limited types of leave protected under FMLA, there are no federal accommodation requirements. Like transgender cases, many caregiver cases rely on sex stereotyping theories.

I.Religion

Title VII prohibits employers from discriminating against “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). Determining whether a practice is religious turns not on the nature of the activity, but on the employee’s motivation. Although generally notice of a need for an accommodation is required, the Supreme Court has held in EEOC v. Abercrombie & Fitch Stores, Inc. that it is unlawful to act with the motive of avoiding accommodation even if the actor “has no more than an unsubstantiated suspicion that accommodation would be needed.”

II.Transgender Employees

Although Title VII of the Civil Rights Act of 1964 (Title VII) does not include sexual orientation or gender identity as protected classes on its face, the EEOC takes the unequivocal position in its Strategic Enforcement Plan and enforcement/litigation activity that Title VII protects LGBT individuals. Based upon the Supreme Court’s decision in Price Waterhouse v. Hopkins, sex stereotyping on the basis of sexual orientation and gender identity is almost universally accepted as actionable sex discrimination. An employer with a specific dress requirement for men that is different than that for women is at risk for a discrimination suit. It is not an “accommodation” request for the transgender employee to dress according to the employee’s gender identity, but rather a discrimination claim not to permit the employee to do so. The EEOC has held that Title VII provides coverage for transgender employees. It remains to be seen whether the courts will follow suit.

III.Caregivers

As the Supreme Court acknowledged,

Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees.

Nevada Dept. of Human Resources v. Hibbs (2003).

The federal legal protections for caregiver accommodations are insufficient. The Family and Medical Leave Act (FMLA) provides some employees with unpaid leave for serious health conditions of very close family members (and themselves). The Americans with Disabilities Act (ADA) and Rehabilitation Act prohibit, among other things, discrimination based on “association with” an individual with a “disability” as defined by the ADA. 42 U.S.C. § 12101 et seq; id. § 12112(b)(4); 29 U.S.C. § 794. The prohibition on disability discrimination can be used for pregnant workers with disabling conditions. The association provision of the ADA does not provide a right to reasonable accommodation (which is required for individuals who themselves have disabilities). Id. § 12112(b). The Fair Labor Standards Act (FLSA) contains a Break Time for Nursing Mothers provision. 29 U.S.C. § 207(r). It is unsettled whether there is a private cause of action to enforce this provision.

The heavy lifting is left to stereotyping claims. There is not, however, an accommodation provision of Title VII. Where the employer does not regularly accommodate other workers, the court will not require it to change its business practices simply because a decisionmaker operates pursuant to pernicious stereotypes. If, however, the employer regularly allows employees to work from home, but denies such an accommodation to an employee because he doesn’t believe men should be caregivers, then the stereotyping claim may be viable.

The stereotypes can take many forms: That women who get pregnant will not or should not want to return to work. That women who return to work will not have the time to do the job right. That men who care for children aren’t real men. While decisions based on stereotypes might be well-meaning or well-intended, paternalistic sex discrimination is illegal. That women were treated better than a plaintiff woman should not, however, be fatal to a stereotyping claim. The proper analysis requires looking below the surface of the employees’ gender to determine whether the true cause is sex stereotyping; whether the decision was “because of sex.”